Question of Nondisclosure Agreements

May 1, 2016

At InformedFed, we often receive calls from federal employees seeking advice and consultation concerning whistleblower claims in the context of retaliation, employee relations, and filing for status with the Office of Special Counsel. Throughout the last eighteen months, we received these inquiries in greater frequency. This is why we watched two recent political developments with keen interest; specifically, the statement by presidential candidate Donald Trump (entire transcript available here) that he would require federal employees to sign nondisclosure agreements (NDA’s) and the National Border Patrol Council rogue endorsement of Donald Trump, just one day earlier. The author of this article has a unique perspective due to his prior union positions and significant outspoken activity with the National Border Patrol Council (NBPC), including threatened arrest and prosecution concerning disclosures made regarding the now forgotten Operation Gatekeeper fiasco on the southwest border (1996-1998) under the Clinton Administration.

Some Background

The views of the National Border Patrol Council have often, with good reason, been misaligned with the views of its parent, the American Federation of Government Employees (AFGE) and ultimately, the American Federation of Labor- Congress of Industrial Organizations (AFL-CIO). However, the views of the NBPC traditionally aligned with its parent organizations regarding pay, benefits, and employee protections (including whistleblower). Where the greatest divergence historically occurred, understandably, concerned issues of immigration control and enforcement as the AFGE seemingly adopted the exceedingly liberal, if not absurd, position of the AFL-CIO regarding illegal immigration, immigration enforcement, and associated criminal penalties.

Therefore, the endorsement of Donald Trump by the NBPC, in contrast to the endorsement of another candidate by the AFGE, though arguably shortsighted and emotionally based, was predictable. Frankly, the AFGE, based on past situations with the NBPC, should have predicted this possibility and worked with the NBPC on a solution. AFGE leadership failed in this regard, as it always did with the NBPC. However, let’s be clear, the NBPC should be free to endorse the candidate its members collectively choose to endorse. After all, if the NBPC, in some democratic manner polled its members and its members voted to endorse Donald Trump, in our opinion, the NBPC leadership would be obligated to endorse Trump rather than to unilaterally decide otherwise. It is worth noting the NBPC previously maintained a policy of no political endorsements, a policy championed by this author. Accordingly, the change is somewhat historic on many levels.

SIDEBAR: This article was inspired by a number of contacts from current US Border Patrol, TSA, and ICE Agents who wrote us concerned about the Trump position on nondisclosure agreements for federal employees.

Trump

It is beyond the scope of this article to discuss the substance of Donald Trump as a presidential candidate in any depth. What most people agree with, including many of his own supporters, is that Trump is a “shapeshifter” constantly changing positions and never discussing any position in substance or depth or with accuracy (for example, the cost of “the wall” has changed repeatedly between four and fourteen billion dollars depending on who he is speaking with). However, his statements must be taken at face value as such an interpretation would provide a fair method of analysis. It is in that context we will examine his position concerning nondisclosure and whistleblower issues and then contrast, with irony, the endorsement of the NBPC.

It is exceedingly well documented, and not disputed, that Donald Trump requires nondisclosure agreements as a condition of employment, even for low level employees and volunteers. The scope of the agreement has been described as a “broad gag order for life.” You can read actual parts of the NDA by clicking here. Don’t sign the agreement, you lose your job. Sign the agreement and break it, he says he will sue you. He can do this in his private business and in any non governmental function. However, he signaled his intention on placing a “gag order” on federal employees as well. Federal employees work for the American people, and not any single individual This is where his amateurish view running a country exposes significant flaws as a candidate for the most powerful office in the world.

As with his requirement for Trump organization employees and volunteers to sign NDA’s, it is also well documented and not in dispute that, as of March 30, 2016 and through the date of this article, Donald Trump intends to consider NDA’s for federal employees if he is elected as president. To be fair and as accurate as possible, Trump did target undefined “high-level employees of the federal government” for NDA’s in the Bob Woodward interview. However, his response was to a question specifically asking about federal employees and not “high-level” employees. Particularly concerning perhaps is that he specifically wants to prohibit outspoken criticism of Trump personally, not just governmental functions. This makes his position on this matter diametrically opposed to the First Amendment.

Again, to be fair, Trump immediately contradicts himself in many of his responses, including the responses concerning nondisclosure agreements. His contradictions, of his own position, even go so far as to question the legality of his own officially stated position. Classic “shape shifting” by any measure to some and “classic Trump” to his own supporters. Either way, what is not in dispute is that he is considering NDA’s as a condition of employment for federal employees. A somewhat absurd, if not alarming, revelation. What do you think his position on whistleblowing activity would be?

SIDEBAR: No administration, Republican or Democrat, has supported whistleblowing activities. Most administrations, despite claims otherwise, actually tightened the rules on whistleblowers and fought hard to destroy their personal and professional lives while they maintained “open” or “transparent” government.

The Ironic Union Endorsement

The very federal union that both endorsed Donald Trump and routinely publicly discloses “inside” information concerning immigration enforcement activities, information often cited as factual by the Trump campaign, is operated by United States Border Patrol Agents who are active federal employees. In other words, had Trump been elected and required NDA’s of federal employees, the same union personnel who made a presidential endorsement and disclosed information concerning governmental functions, in this case, immigration enforcement, would have violated the NDA. Or, put another way, if Donald Trump gets his way, the very union personnel that disclosed information and endorsed him would be prohibited from doing either in a Trump administration. Unless……maybe……it made Trump look good.

At the very least, in the most benevolent interpretation of his statement’s, Trump is signaling his intention to resurrect the political spoils system in the Civil Service. Something that should be an anathema to the mission of any union organization.

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